REGIONAL PROVIDENT FUND COMMISSIONER Vs. EVERYDY INDUSTRIES LIMITED

JUDGEMENT

(1.) THIS appeal has been filed by the regional Provident Fund Commissioner, Jalpaiguri challenging the order passed by the learned Single Judge on 28th January, 2003 whereby the learned single Judge set aside the impugned order with a direction to the authorities to reconsider the issue within a period of three months from the date in the light of the judgment and order passed by the Court. In coming to the aforesaid conclusion the learned Single Judge relied on a Division Bench judgment of this Court in the case of Darjeeling Dooars Plantation Ltd. and Anr. vs. Regional p. F. Commissioner, W. B. and Ors. , reported in 1995 (1) LLJ 1999, wherein it has been held that there is a distinction in between section 14b and section 17b of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. The ratio of the aforesaid judgment came up for consideration before a special Bench of this Court in the case of Dalgaon Agro Industries Ltd. (now known as Tasati Tea Ltd.) vs. Union of India and Ors. , reported in 2005 (3) CHN 428. The judgment of the Division Bench in the Darjeeling case (supra) has been specifically overruled. It has been held that though the word 'employer' and 'other persons' connotes two different identities, yet in the context of section 17b on transfer of the establishment notionally and legally the transferor ceases to be employer and the transferee stepped into the shoes of the employer. It was further held that a legal fiction has been created in respect of the liabilities arising under any provision of 1952 Act to continue the liability for the purpose of facilitating recovery even in respect of the dues that had accrued prior to the date of transfer making both the transferor and the transferee liable jointly and severally. It has also been held that the expression 'other person' also connotes the transferee who is stepping into the shoes of the employer as soon as the transferee steps into the shoes of the employer the continuity of the liability is not affected by the transfer and both the transferor and the transferee, as employer past and present remains liable jointly and severally. The Special Bench further observed that it is difficult to accept the proposition that the provisions of section 17b would not extend to section 14b despite the damages impossible thereunder being other sum due under the provisions of the Act. The Special Bench particularly observed- "we therefore, do not agree with the said decision in Darjeeling dooars Plantation Ltd. (supra) and overruled the same. "

(2.) IN view of the aforesaid clear enunciation of law, we are of the considered opinion that the judgment of the learned Single Judge would have to be set aside and the appeal would have to be allowed in view of the ratio of law laid down by the Special Bench.

(3.) IN view of the above, the appeal is allowed. The judgment of the learned single Judge is hereby set aside.